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By MARJORIE MARONA & FÁBIO KERCHE*

Why should we look to the Electoral Justice

In analysis of elections, we usually look at candidates, their parties and opinion polls. The discussion about electoral rules, although of more restricted interest, also attracts specialists and politicians: what is the impact of a certain rule on electoral strategies and results?

In addition to the traditional analyzes of the most relevant candidacies, alliances, and the performance of the parties in the municipal elections that take place later this year, it is worth following the way in which the exceptional change in the organizational rules of this election impacts on its result. Will the end of the party coalition for proportional elections reduce the number of parties represented in the city councils? Will elections be restricted to local affairs or will the debate be “nationalized”?

Special emphasis must be given to the performance of the Electoral Justice actors. And what is the point of making efforts to understand and monitor the performance of judges and electoral prosecutors? Charged with maintaining the fairness of the election, in a not so common model from a comparative perspective – called electoral governance – actors who do not dispute the votes of voters, do not appear on radio and TV programs, have been gaining prominence due to their growing ability to interfere in any phase of the electoral process – replicating what seems to be the pattern established among judicial and political institutions in Brazil.

From the party convention to the revocation of mandate, passing through the registration of candidacies and free electoral propaganda, (almost) everything can be the object of ministerial intervention and judicial decision. The impact on the dispute between parties and candidates and, consequently, on the outcome of the elections, is extensive – and, many times, undesirable from the point of view of democracy.

The most recent example of how a legal decision can modify the electoral game is perhaps the impediment of the candidacy of former President Lula in the last presidential elections of 2018. Based on previous decisions that allowed convicts (even in the 2nd instance of judgment) to run , the ex-president's lawyers requested that he be able to run in the election, whose polls pointed to his superiority. However, the Superior Electoral Court (TSE), in a decision of 5 votes against 1, determined that Lula could not face his opponents. Although it is not possible to establish a direct relationship between the TSE decision and the result of the presidential elections, there are indications that the replacement of the former president by his vice president, Fernando Haddad, in the electoral race, had an impact on the dispute, considering, particularly, that the election of the current president surprised most of the analysts who until then indicated that his chances of victory were very remote.

Of course, a lot could have happened if Lula could have run in the election in 2018, including his defeat. But it is also evident that that decision – taken by judges, unelected, by the way – had an impact on the result and on the course of the country, today under the baton of the former captain – until then a deputy with marginal political activity from a irrelevant party. If rules matter in the outcome of the game, electoral judges – who make and apply them – do too.

Now in 2020, we will have elections for mayors and councilors in more than five thousand municipalities across the country. There are cities with more voters than many countries, such as São Paulo, with more than eight million voters, contrasting with Araguainha (MT) where only 954 citizens are eligible to vote. In common, the fact that regardless of the size of the electoral college, in each of the municipalities there will be judges and electoral prosecutors monitoring the process and empowered, for example, to remove candidates from the election and even revoke those elected by popular vote, in some circumstances . In order to have an idea of ​​the extent of the impact of the work of electoral prosecutors and judges, it should be remembered that in the last municipal election, in 2016, 145 candidates with the most votes in several municipalities did not have, on election day, a definitive answer from their registration application. This implies that, even though they were anointed by popular vote, they did not know if, in fact, they would assume their respective mandates.

In cases of rejection of the candidacy registration of the incumbent or deputy in major elections (such as those for mayor, now in 2020), it demands that new elections be held – and the same is said in relation to the revocation of a diploma or mandate. It is undeniable that the cancellation of a mayor's mandate, registration or diploma, for example, matters in the dilemma between legality and sovereignty. On the one hand, the intention is to restore the legitimacy of elections assuming the result is vitiated by an irregularity; on the other hand, however, popular sovereignty is undermined, at least until new elections are held. And this is a task that is often entangled in judicial disputes throughout the various instances of the Electoral Justice, operating vacuums of sovereignty that are extremely harmful not only for the immediate voter, but for democracy in general.

Some general data on holding supplementary elections, those held outside the national calendar, illustrate the picture. In 2012, eight were held, half of which were suspended amid legal disputes. In 2014, 29 supplementary elections were held, of which ten were judicially suspended. The following year, in 2015, another 23 supplementary elections were held, four of which were suspended in court; in 2017, of the 61 supplementary elections held, 4 were suspended; and finally, in 2018, 35 supplementary elections were held, of which two were suspended and one judicially canceled .

Considering the current electoral governance model in Brazil – in which electoral justice accumulates normative, administrative and jurisdictional functions – the stability of the democratic process and, consequently, voter confidence, depend on the performance of electoral prosecutors and judges. The normative changes made on the eve of this year's elections further amplify the factors of instability. Monitoring, therefore, the performance of judges and electoral prosecutors has become as important as observing voters, candidates and their parties.

*Marjorie Marona is a professor at the Graduate Program in Political Science at UFMG. Researcher at the Institute for Democracy and Democratization of Communication (INCT/IDDC).

* Fabio Kerche He is a researcher at the Casa de Rui Barbosa Foundation, a permanent professor at the Graduate Program at Unirio and a collaborator at IESP/UERJ.

Originally published on 2020 Election Observatory of the Institute of Democracy and Democratization of Communication (INCT/IDDC).

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